Ronald Herman v. Department of Justice ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD J. HERMAN, DOCKET NUMBER
Appellant, DC-1221-10-0164-B-5
v.
DEPARTMENT OF JUSTICE, DATE: December 18, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dennis L. Friedman , Philadelphia, Pennsylvania, for the appellant.
Joseph McCluskey , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Except as MODIFIED by this Final Order to expressly find that the
appellant did not prove by preponderant evidence that he had a reasonable belief
that he made a protected disclosure, we AFFIRM the initial decision and DENY
the petition for review.
BACKGROUND
The Initial Appeal
¶2 The appellant was a GS-13 Human Resource Management Examiner with
the agency’s Bureau of Prisons. 2 In that position, he reviewed and evaluated
programs at each of the agency’s 116 correctional facilities and its central Human
Resources Department. Following a September 25, 2009 closure letter from the
Office of Special Counsel (OSC), the appellant filed an individual right of action
(IRA) appeal alleging that the agency retaliated against him for protected
whistleblowing. Herman v. Department of Justice, 115 M.S.P.R. 386 (2011);
Herman v. Department of Justice, MSPB Docket No. DC-1221-10-0164-W-1,
Initial Decision (Feb. 19, 2010) (W-1 ID). He alleged that he made the following
disclosures protected under the Whistleblower Protection Act (WPA): (1) a
manager violated the Privacy Act by telling the appellant’s second-level
supervisor that the appellant’s review of the agency’s Consolidated Employee
Services Center may have been unduly harsh because his daughter, who had
2
During the course of the proceedings before the Board, the appellant retired from the
Federal Government.
3
worked there, had been disciplined; (2) his first-level supervisor abused her
authority and engaged in gross mismanagement by issuing and then retracting a
letter of counseling and threatening to detail the appellant to another position
while indicating that if the appellant applied for another position she would make
everything go away; and (3) both his first- and second-level supervisors abused
their authority during a number of facility reviews by arriving late, not interacting
with the review team, making sarcastic and inappropriate comments in front of
the team, and delegating to an inmate the handling of sensitive documents. 3
Herman, 115 M.S.P.R. 386, ¶ 2. The appellant alleged that, in retaliation for his
disclosures, the agency took the following personnel actions: (1) issued him two
letters of counseling; (2) gave him an unfavorable performance review; and
(3) reassigned him to a different position. Id.¶3 On February 19, 2010, the administrative judge issued an initial decision
that dismissed the appeal for lack of jurisdiction, finding that the appellant failed
to make a nonfrivolous allegation that he had made a protected disclosure. W-1
ID. On January 7, 2011, the Board reversed the initial decision, found that the
appellant had made a nonfrivolous allegation that he made protected disclosures,
thus establishing Board jurisdiction, and remanded the appeal for a hearing.
Herman, 115 M.S.P.R. 386, ¶¶ 12-14; see Peterson v. Department of Veterans
Affairs, 116 M.S.P.R. 113, ¶ 8 (2011) (stating that once an appellant establishes
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his
claim).
First Remand
¶4 On remand, the administrative judge assumed that the appellant had made a
prima facie case of retaliation under the WPA and proceeded directly to whether
the agency proved by clear and convincing evidence that it would have taken the
3
The appellant also asserted that having an inmate copy the documents was a violation
of a law, rule, or regulation. Herman v. Department of Justice, MSPB Docket No. DC-
1221-10-0164-W-1, Initial Appeal File, Tab 4 at 12-13.
4
same actions absent the appellant’s whistleblowing, without first deciding
whether he had established by preponderant evidence that he made a protected
disclosure and whether that disclosure was a contributing factor to a personnel
action. 4 Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 5 (2013). The
administrative judge allowed testimony only on the issue of whether the agency
established its affirmative defense by clear and convincing evidence, found that
the agency met its burden of proof, and denied the appellant’s request for
corrective action in a September 28, 2011 remand initial decision. Id., ¶ 6;
Herman v. Department of Justice, MSPB Docket No. DC-1221-10-0164-B-2,
Remand Initial Decision (Sept. 28, 2011). On January 19, 2012, the appellant
again petitioned for review, arguing that the administrative judge erred in his fact
findings and credibility determinations and prevented him from fully developing
his case. Herman v. Department of Justice, MSPB Docket No. DC-1221-10-
0164-B-2, Petition for Review File, Tab 5.
¶5 On August 12, 2013, the Board issued an Opinion and Order finding that the
record was not sufficiently developed for it to determine whether the agency
carried its burden by clear and convincing evidence. Herman, 119 M.S.P.R. 642,
¶¶ 12-20. The Board remanded the appeal for “further adjudication of the
appellant’s prima facie case of whistleblower reprisal” and, if necessary, a new
analysis of whether the agency established by clear and convincing evidence that
it would have taken the personnel actions at issue absent the disclosures.
Id., ¶ 21.
4
This case arose under the Whistleblower Protection Act (WPA), and, under that
statute, administrative judges often assumed that an appellant had established his prima
facie case of retaliation by preponderant evidence and proceeded directly to the
agency’s affirmative defense, i.e., whether the agency proved by clear and convincing
evidence that it would have taken the same action absent the whistleblowing. See
Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 17 (2003), aff’d, 97 F. App’x 322(Fed. Cir. 2004).
5
Second Remand
¶6 A different administrative judge was assigned to adjudicate the appeal on
the second remand. The new administrative judge allowed the parties to present
evidence, including hearing testimony, regarding whether the appellant had made
a protected disclosure and whether that disclosure was a contributing factor to the
personnel actions, i.e., an opportunity to make a prima facie case of reprisal for
whistleblowing. The new administrative judge, in a June 20, 2014 remand initial
decision, determined that the appellant had not met his burden to prove his prima
facie case of retaliation, finding that he had failed to prove by preponderant
evidence that he had made protected disclosures. Herman v. Department of
Justice, MSPB Docket No. DC-1221-10-0164-B-3, Remand Initial Decision
(June 20, 2014) (B-3 RID).
¶7 In his petition for review, the appellant contended that the administrative
judge was precluded by the law of the case doctrine from finding that the
appellant had failed to make protected disclosures. Herman v. Department of
Justice, MSPB Docket No. DC-1221-10-0164-B-3, Remand Order, ¶ 6 (July 6,
2015) (B-3 Remand Order). He asserted that the Board found in Herman,
115 M.S.P.R. 386, that he had made protected disclosures. Id. He also asserted
that the administrative judge erred in denying his motion to compel discovery of
email exchanges between various agency officials, including the appellant’s first-
and second-level supervisors, to which the agency had access, as these emails
were relevant to his burden to prove his prima facie case. Id.¶8 The Board found, contrary to the appellant’s assertion, that it previously did
not decide that he had made protected disclosures in Herman, 115 M.S.P.R. 386.
Id., ¶ 7. Rather, the Board agreed with the administrative judge that the appellant
had exhausted his procedural remedies before OSC, and that, under the
“knowledge/timing” test, had made a nonfrivolous allegation that his disclosures
were a contributing factor to the alleged retaliatory personnel actions, thus
6
establishing jurisdiction over his IRA appeal. Id.; Herman, 115 M.S.P.R. 386,
¶¶ 9-12; see Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
Cir. 2001) (stating that the Board has jurisdiction over an IRA appeal if the
appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that: (1) he engaged in whistleblowing activity by
making a protected disclosure; and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action). Thus, the Board
found that its prior decision merely precluded the administrative judge from
dismissing the appellant’s IRA appeal for lack of jurisdiction. B-3 Remand
Order, ¶ 5.
¶9 However, the Board found that the administrative judge abused her
discretion in denying the appellant’s motion to compel discovery. Id., ¶¶ 8-15.
The Board noted that the appellant had attempted to discover emails, notably
those initiated by the first- and second-level supervisors, to meet his burden of
establishing a prima facie case of reprisal for whistleblowing. Id., ¶ 9.
Specifically, according to the appellant, the emails would show, among other
things, that his second-level supervisor communicated with various agency
officials, including his first-level supervisor, in an effort to control and influence
agency actions involving the appellant. Id.
¶10 The Board also found that the record showed that the agency had two email
systems, Netmail and GroupWise. Id., ¶ 14. The Board indicated that GroupWise
and Netmail are different email systems, that the content of the two systems,
while similar in some ways, is not identical, and that based on the testimony of an
agency information technology employee, the agency did not search GroupWise
pursuant to the appellant’s discovery request. Id. The Board found further that
the GroupWise email system may contain emails, notably those to or from the
first- and second-level supervisors, that may be relevant to the appellant’s prima
facie case, including the reasonableness of his belief that one of the matters he
disclosed is protected, the knowledge of his disclosures by agency officials, and
7
the motivation of the first- and second-level supervisors, or other agency officials
to retaliate against him. 5 Id. Even if the agency carried out its policy to delete
the first- and second-level supervisor’s email accounts after they left the agency,
other employees remained at the agency who may have been the recipients of
emails from the first- and second-level supervisors, emails that may remain in
their GroupWise personal archives because they would have predated the
agency’s efforts to pull GroupWise’s personal archived emails into Netmail. Id.
¶11 Because the appellant bears the burden of establishing his prima facie case,
and the emails in the GroupWise system appeared to be relevant or possibly lead
to the discovery of relevant evidence, the Board vacated the initial decision and
remanded this appeal for the administrative judge to reopen discovery, allow the
appellant to request a supplemental hearing to address issues arising as a result of
the agency’s responses to his discovery requests, and issue a new initial decision.
Id., ¶ 15.
Third Remand
¶12 On remand, the appellant initiated discovery and was dissatisfied with the
search results provided by the agency in response to his discovery requests. The
agency then agreed to conduct a search of the email system using search terms
provided by the appellant. Herman v. Department of Justice, MSPB Docket
No. DC-1221-10-0164-B-5, Appeal File (B-5 AF), Tab 5 at 1. Prior to
conducting the search, however, the agency had a “disruption of service” on the
relevant email systems, did not resolve the problem, and thus did not run the
search using the terms that the appellant provided. Id. at 2. The administrative
judge ordered the agency to submit the specific discovery requests to which it
provided responses to the appellant and to explain why it believed it had
complied with the Board’s previous order. Id. at 3. The administrative judge also
5
The Board, in its second remand order, specifically determined that the appellant must
be permitted to develop the record on the substance of his allegedly protected
disclosures as well as the extent to which his second-level supervisor was aware of it.
Herman, 119 M.S.P.R. 642, ¶¶ 12-20.
8
ordered the appellant to respond to the agency’s submission, and to explain how
the agency’s response was deficient and why additional searches were necessary.
Id. Further, the administrative judge ordered both parties to address what, if any,
adverse inference would be appropriate if the agency was unable to recover
access to its email records. Id.¶13 In response, the agency argued that it had satisfied its discovery obligation
in compliance with the Board’s remand order. B-5 AF, Tab 9 at 5-6. The
appellant argued for adverse inferences related exclusively to the contributing
factor and clear and convincing evidence aspects of the case. Id., Tab 10 at 4-9.
The appellant did not provide any new evidence that supported his assertion that
he made a protected disclosure and did not claim that any discovery that he
requested that was not provided would assist him in establishing that he made a
protected disclosure. Id. at 7-9.
¶14 In an August 12, 2016 remand initial decision, the administrative judge
found that the Board did not reverse her finding that the appellant failed to prove
by preponderant evidence that he made a protected disclosure, and that all of the
adverse inferences for the agency’s inability to complete discovery that the
appellant requested related to the appellant’s burden of establishing contributing
factor and/or his ability to rebut the agency’s claim that it would have taken the
same action absent his disclosure; therefore, she reaffirmed her finding that the
appellant failed to prove by preponderant evidence that he made a protected
disclosure. Herman v. Department of Justice, MSPB Docket No. DC-1221-10-
0164-B-5, Remand Initial Decision at 7-9 (Aug. 12, 2016) (B-5 RID). She also
found that, because the appellant failed to prove by preponderant evidence that he
made a protected disclosure, she need not proceed to the issues of whether the
appellant established by preponderant evidence that his alleged protected
disclosures were a contributing factor to the adverse personnel actions and
whether the agency proved by clear and convincing evidence that it would have
taken the same actions in the absence of his whistleblowing. B-5 RID at 9-10.
9
¶15 On October 4, 2016, the appellant petitioned for review of the third remand
initial decision and that matter is now before us. In his petition for review, the
appellant asserts that the administrative judge erred by failing to allow him a
supplemental hearing based on the agency’s responses to his discovery requests.
Herman v. Department of Justice, MSPB Docket No. DC-1221-10-0164-B-5,
Petition for Review (PFR) File, Tab 3. The agency responded to the petition,
PFR File, Tab 6, and the appellant replied to the response, PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW 6
¶16 As noted, the Board has jurisdiction over the appellant’s IRA appeal. In
contrast to the nonfrivolous allegations necessary to establish Board jurisdiction,
to establish a prima facie case of reprisal for whistleblowing under the WPA, the
appellant must prove, by preponderant evidence, that he made a disclosure
described under 5 U.S.C. § 2302(b)(8) and the disclosure was a contributing
factor in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). Jenkins v. Environmental Protection Agency,
118 M.S.P.R. 161, ¶ 16 (2012). To establish that an appellant made a protected
disclosure under 5 U.S.C. § 2302(b)(8), he need not prove that the matter
disclosed actually established one of the categories of wrongdoing listed under
section 2302(b)(8); rather, he must show that the matter disclosed was one which
a reasonable person in his position would believe evidenced any of the situations
specified in 5 U.S.C. § 2302(b)(8). Schnell v. Department of the Army,
114 M.S.P.R. 83, ¶ 19 (2010); see Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 11 (2016) (applying the same principle after enactment of
the Whistleblower Protection Enhancement Act). Only if the appellant makes a
prima facie case does the agency have the burden to prove by clear and
6
The events at issue in this appeal all occurred prior to the 2012 enactment of the
Whistleblower Protection Enhancement Act. See Pub. L. No. 112-199, 126 Stat. 1465.
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
10
convincing evidence that it would have taken the same action in the absence of
the appellant’s whistleblowing. Jenkins, 118 M.S.P.R. 161, ¶ 16.
¶17 As noted, in the Board’s decision on the petition for review of the second
remand initial decision, after affording the appellant a hearing, the administrative
judge found that the appellant failed to establish that he made a protected
disclosure. B-3 Remand Order, ¶ 5. Thus, she did not reach the issue of whether
the appellant proved contributing factor by preponderant evidence, and did not
shift the burden to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the protected disclosure.
¶18 When the Board remanded the appeal for the third time, it did so to assure
that the appellant would have the opportunity to discover evidence that might
allow him to prove by preponderant evidence that the matters he disclosed were
ones which a reasonable person in his position would believe evidenced any of
the situations specified in 5 U.S.C. § 2302(b)(8). B-3 Remand Order, ¶¶ 8-15.
Here, we agree with the administrative judge that the additional evidence that the
appellant discovered and that he sought in discovery was not relevant to that
issue. B-5 RID. Indeed, in his petition for review, the appellant admits that the
evidence that he sought related to whether he established that his protected
disclosures were a contributing factor to the personnel actions and to his rebuttal
of the evidence that the agency would have taken the same action absent his
whistleblowing. PFR File, Tab 3 at 5-7. Because the appellant failed to show
that issues regarding whether he established that he made protected disclosures
arose as a result of the agency’s responses to his discovery request or as a result
of the agency’s inability to respond to his discovery requests, he was not entitled
to a supplemental hearing, and the administrative judge did not err in failing to
afford him such a hearing.
11
The appellant did not show by preponderant evidence that he had a reasonable
belief that his disclosures evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8).
¶19 We agree with the administrative judge that the Board did not reverse her
earlier finding that the appellant failed to prove by preponderant evidence that his
disclosures were ones that a reasonable person in his position would believe
evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). B-5 RID at 7.
However, because the Board vacated the remand initial decision, we now address
whether the appellant met his burden. The test in assessing whether the appellant
had a reasonable belief is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions disclosed could be a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, abuse of authority or a
substantial and specific danger to public health and safety. Lachance v. White,
174 F.3d 1378, 1381 (Fed. Cir. 1999).
The appellant failed to show that he reasonably believed that an agency manager
violated a law, rule, or regulation by revealing information about his daughter’s
disciplinary history.
¶20 The appellant stated he made his first disclosure to his fourth-level
supervisor when he told her that the Deputy Assistant Director, Human Resources
Management Division at the Consolidated Employee Services Center, violated the
Privacy Act by informing the appellant and the appellant’s second-level
supervisor that the appellant’s daughter, who previously worked at the facility,
had been suspended for misconduct. Herman, 115 M.S.P.R. 386, ¶ 2. The stated
reason for providing this information was a concern about the appellant’s
objectivity, but the appellant asserted that questions about his daughter’s
suspension were unrelated to the Consolidated Employees Services Center review
and that there was “no supportable evidence of [his] alleged bias or retaliation or
any finding of bias or retaliation.” Herman v. Department of Justice, MSPB
Docket No. DC-1221-10-0164-W-1, Petition for Review File, Tab 3 at 2. The
12
Board previously found that, because there was no record evidence that the
appellant’s duties required him to be familiar with the intricacies of the Privacy
Act, he made a nonfrivolous allegation that, if proven, could establish a protected
disclosure. Herman, 115 M.S.P.R. 386, ¶ 10. As discussed below, however, the
appellant has failed to establish by preponderant evidence that this disclosure was
protected.
¶21 In his hearing testimony, the appellant stated that reviews are a “big deal”
and affect an institution’s accreditation. Herman v. Department of Justice, MSPB
Docket No. DC-1221-10-0164-B-3, Appeal File (B-3 AF), Hearing Transcript
(B-3 HT) at 197 (testimony of the appellant). Because of the consequences of the
reviews, it is critical that they be performed in an objective and unbiased manner.
The appellant acknowledged that it would be proper to notify a manager if there
was concern about an employee’s neutrality or if there was reason to believe that
an employee was unprofessional. Id. at 203 (testimony of the appellant).
¶22 If, as here, the family member of a Human Resource Management Examiner
was disciplined by management in the reviewed office, it is reasonable to
consider whether the Examiner could be biased in his review. As noted above,
the appellant acknowledged in his testimony that it would be proper to notify
management if there was a concern about an employee’s neutrality and he has not
identified any other potential basis for the Consolidated Employee Services
Center manager to provide information about the appellant’s daughter. Thus, we
conclude that, while he was not an expert in the Privacy Act, the appellant
understood the importance of impartial reviews and the agency’s interests in
ensuring that reviewers had no potential bias. Thus, we conclude that he failed to
prove by preponderant evidence that he reasonably believed that he disclosed a
violation of law, rule, or regulation.
13
The appellant failed to show that he reasonably believed that agency managers
abused their authority and engaged in gross mismanagement by issuing him a
letter of counseling and discussing a reassignment with him.
¶23 The appellant stated he also disclosed that his supervisor issued him and
then retracted a letter of counseling, made derogatory log entries about him, and
detailed him to another position while indicating that, if he applied for a position
elsewhere, she would make this all go away. Herman, 115 M.S.P.R. 386, ¶ 11.
The appellant stated that he made the disclosure to his third-level supervisor and
that the agency’s action constituted gross mismanagement and an abuse of
authority. Herman v. Department of Justice, MSPB Docket No. DC-1221-10-
0164-W-1, Initial Appeal File (IAF), Tab 4 at 12.
Gross Mismanagement
¶24 Gross mismanagement means an action or inaction that creates a substantial
risk of a significant adverse impact on the agency’s ability to accomplish its
mission; it is more than de minimis wrongdoing or negligence. Jensen v.
Department of Agriculture, 104 M.S.P.R. 379, ¶ 9 (2007). The appellant has not
provided any evidence or argument regarding how the agency’s action or inaction
in this instance created a substantial risk of a significant adverse impact on the
agency’s ability to accomplish its mission. Therefore, we find that he has not
shown that he had a reasonable belief that his disclosure evidenced gross
mismanagement.
Abuse of Authority
¶25 Abuse of authority occurs when there is an arbitrary or capricious exercise
of power by a Federal official or employee that adversely affects the rights of any
person or results in personal gain or advantage to himself or preferred other
persons. Herman, 115 M.S.P.R. 386, ¶ 11. There is no de minimis standard for
abuse of authority as a basis of a protected disclosure under the WPA. Id.Harassment or intimidation of other employees may constitute an abuse of
14
authority. A supervisor’s use of her influence to denigrate staff members in an
abusive manner and to threaten the careers of staff members with whom she
disagrees constitutes abuse of authority. 7 Id.The appellant has failed to prove that he reasonably believed that the
issuance of the letter of counseling was an abuse of authority.
¶26 The appellant asserts that he disclosed to his third-level supervisor that his
first-level supervisor improperly gave him a letter of counseling and threatened to
reassign him. B-3 HT at 163-65 (testimony of the appellant). The appellant’s
first-level supervisor testified that she issued the appellant a letter of counseling
because she observed, and was made aware of, communication and interpersonal
skills issues that were unprofessional and not productive. B-3 AF, Tab 52 at 320
(testimony of the appellant’s first-level supervisor). 8 The letter specifically
addressed the appellant’s communication with management and stated that the
appellant was defensive and argumentative when questioned about work
assignments or review schedules. Herman v. Department of Justice, MSPB
Docket No. DC-1221-10-0164-B-2, Appeal File (B -2 AF), Tab 3, Subtab 7C.
Further, the appellant’s first-level supervisor stated that the appellant needed to
focus on the mission of the division, rather than on his personal preferences. Id.7
In her initial decision, the administrative judge adopted her previous findings that,
among other things, the letter of counseling and the suggested reassignment of the
appellant were not arbitrary and capricious and thus not an abuse of authority. B-5 RID
at 9; B-3 RID at 10-13. To establish that the appellant had a reasonable belief that a
disclosure met the criteria of 5 U.S.C. § 2302(b)(8), he need not prove that the matter
he disclosed actually constituted an abuse of authority; rather, the appellant must show
that the matter disclosed was one which a reasonable person in his position would
believe evidenced an abuse of authority. Schnell, 114 M.S.P.R. 83, ¶ 19. Any error in
this regard by the administrative judge did not prejudice the appellant’s substantive
rights because, as discussed below, the appellant failed to show that he disclosed a
matter that a reasonable person in his position would believe evidenced an abuse of
authority.
8
This citation is to the transcript of the August 17, 2011 hearing in the appellant’s case.
Portions of the transcript of that hearing were submitted into the record by the agency
as exhibits to its closing argument. The appellant has not alleged any errors in the
transcript provided by the agency.
15
She testified that the appellant acknowledged issues with his communications,
B-3 AF, Tab 52 at 321 (testimony of the appellant’s first-level supervisor), and
stated in his performance appraisal, prepared in April 2008, that the appellant
recognized the need to improve his communications and that he had, in fact,
improved, B-2 AF, Tab 3, Subtab 5. She explained that she withdrew the letter of
counseling after the appellant acknowledged that he “needed to tone it down a
little bit” and demonstrated a willingness to “change his tone.” B-3 AF, Tab 52
at 321 (testimony of the appellant’s first-level supervisor).
¶27 The appellant acknowledged receiving the letter of counseling. B-3 HT
at 162-63 (testimony of the appellant). He testified that he thought that his
communication skills were “pretty good.” Id. at 165 (testimony of the appellant).
He stated that he spoke to his third-level supervisor on March 5, 2008, about the
letter of counseling, id. at 165-66 (testimony of the appellant), but the appellant’s
third-level supervisor did not testify about a meeting with the appellant in
March 2008, but rather stated that she met with him regarding his complaints
about his supervisors in July 2008, B-3 AF, Tab 52 at 264 (testimony of the
appellant’s third-level supervisor). The appellant’s third-level supervisor did not
testify regarding speaking to the appellant’s first-level supervisor about the
communication letter of counseling, 9 and the first-level supervisor stated she did
not recall speaking to the third-level supervisor about it. Id. at 345-46 (testimony
of the appellant’s first-level supervisor).
¶28 The agency has presented testimony and documentary evidence from the
appellant’s first-level supervisor that the appellant acknowledged his
communications issues. This acknowledgement is consistent with the agency’s
withdrawal of the letters of counseling based on the appellant’s recognition of his
9
The appellant’s third-level supervisor stated she spoke to the appellant about letters of
counseling in July 2008, and not the March 3, 2008 letter. B-3 AF, Tab 52 at 269
(testimony of the appellant’s third-level supervisor). According to the appellant’s
third-level supervisor, the letters of counseling she discussed with the appellant were
not in the record because “they were pulled.” Id. at 270 (testimony of the appellant’s
third-level supervisor).
16
problem and need for improvement. Furthermore, while he asserts that he spoke
to his third-level supervisor about the letter of counseling, which could suggest
that he disagreed with the letter, the agency witnesses do not support his version
of events.
¶29 Based on our review of the record evidence, the appellant acknowledged
that he had some communications issues. A reasonable person would not find the
issuance of a letter of counseling regarding an acknowledged weakness to
constitute an abuse of authority. Thus, we find that the appellant has not
demonstrated by a preponderance of the evidence that he reasonably believed that
the agency engaged in an abuse of authority.
¶30 Furthermore, even if the appellant did not agree with his first-level
supervisor’s assessment that he had communication issues, that disagreement
does not mean that the appellant reasonably believed that his supervisor’s actions
constituted an abuse of authority. It is not reasonable for an employee to believe
that a letter of counseling about an assessment of his performance, with which he
disagrees, without more, such as a threatened disciplinary action or a significant
change in duties, constitutes an abuse of authority by his supervisor. The
whistleblower protection statutes were never intended to cover individual
complaints and grievances about how an employee was treated. Rzucidlo v.
Department of the Army, 101 M.S.P.R. 616, ¶ 18 (2006) (finding that the
appellant’s disclosures, which were “fundamentally his own complaints and
grievances about how he was treated by the agency,” were not protected
disclosures); Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 24
(2005) (finding that the appellant’s “personal complaints and grievances about
how he was treated by the agency or mere debatable disagreements with the
agency’s policy decisions” did not constitute protected disclosures); see Willis v.
Department of Agriculture, 141 F.3d 1139, 1144 (Fed. Cir. 1998) (explaining that
the WPA “is intended to protect government employees who risk their own
personal job security for the advancement of the public good by disclosing abuses
17
by government personnel”), superseded by statute on other grounds as stated in
Salazar v. Department of Veterans Affairs, 2022 MSPB 42; Frederick v.
Department of Justice, 73 F.3d 349, 353 (Fed. Cir. 1996) (recognizing that the
purpose of the WPA is to “root out real wrongdoing”). Thus, we conclude that
the appellant did not make a protected disclosure of an abuse of authority.
The appellant has failed to prove that he reasonably believed that
discussing, but not directing, a reassignment was an abuse
of authority.
¶31 The appellant testified that his first-level supervisor told him that he would
be reassigned to another section at the time he received the letter of counseling in
March 2008, that she explained it was to get him off his second-level supervisor’s
“radar,” and that if he applied for another job “everything would go away.” B-3
AF, Tab 52 at 79-82 (testimony of the appellant). The appellant’s first-level
supervisor acknowledged that she discussed a possible reassignment with the
appellant in March 2008, but that when he objected to the reassignment, another
employee who volunteered for the assignment was reassigned instead. 10 Id.
at 346-50 (testimony of the appellant’s first-level supervisor).
¶32 As discussed above, an abuse of authority occurs when there is an arbitrary
or capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or results in personal gain or advantage to himself
or preferred other persons. Herman, 115 M.S.P.R. 386, ¶ 11. Here, the record
shows that the appellant’s first-level supervisor discussed with the appellant a
possible reassignment to a similar position with the appellant’s organization, but
when he objected to the proposed reassignment, no action was taken. Thus, there
was never an exercise of power or authority taken by any agency official that
adversely affected the rights of anyone, including the appellant, or resulted in
personal gain or advantage.
10
The fact that another employee volunteered for the reassignment and was in fact
reassigned shows that the possible reassignment discussed with the appellant was
legitimate.
18
¶33 Likewise, the appellant’s complaint about the reassignment was, at most, his
mere disagreement with a possible agency action that might have affected a single
individual—himself—which does not otherwise constitute a protected disclosure
under the WPA. On the record before us, we find that the appellant alleged facts
that showed the agency’s course of action of talking to him about a possible
reassignment was simply a reasonable exercise of management discretion in
handling a potential personnel matter. Accordingly, applying the disinterested
observer standard to these facts, we find that the appellant did not have a
reasonable belief that his disclosure regarding a possible reassignment was
protected because he did not sufficiently allege an abuse of authority. See
generally White v. Department of the Air Force , 391 F.3d 1377, 1382 (Fed. Cir.
2004) (holding that a policy disagreement cannot serve as the basis for a
protected disclosure unless the legitimacy of a particular policy choice is not
debatable among reasonable people).
The appellant failed to show that he reasonably believed that agency managers
abused their authority through their conduct during program reviews.
¶34 According to his OSC complaint, on July 23, 2008, the appellant disclosed
to his third-level supervisor that, during program reviews, the appellant’s first-
and second-level supervisors arrived late, were not interacting with the team,
made sarcastic and inappropriate comments in front of the team, and delegated to
an inmate orderly the handling of sensitive documents. Herman, 115 M.S.P.R.
389, ¶ 12; IAF, Tab 4 at 12. The appellant stated that he met with his
second-level supervisor after speaking with his third-level supervisor and
discussed these issues with his second-level supervisor. IAF, Tab 4 at 13. The
Board found in a previous decision that the appellant made a nonfrivolous
allegation of abuse of authority based on his disclosure that his supervisors
harassed or intimidated the review team by making sarcastic remarks in front of
them. Herman, 115 M.S.P.R. 389, ¶ 12.
19
¶35 The appellant acknowledged that he did not know what his supervisors were
doing before they arrived at the program reviews, that they could have been doing
other work, and that it was not his place to question what his supervisors were
doing. B-3 HT at 218-19 (testimony of the appellant). Beyond his supervisor’s
tardiness, in his OSC complaint the appellant made general statements about his
supervisor’s unprofessional interaction with the institution staffs and the members
of the facility review team, including the purported making of sarcastic and
inappropriate comments in front of the team. IAF, Tab 4 at 12-13, 20-21. He did
not provide any specific information regarding these actions.
¶36 As noted above, an abuse of authority involves the arbitrary and capricious
exercise of power by a Federal official or employee that adversely affects the
rights of any person or results in personal gain or advantage to himself or
preferred other persons. Herman, 115 M.S.P.R. 386, ¶ 11. The appellant has not
shown how the general allegations of purported wrongdoing set forth above
establish that a reasonable person with the knowledge of someone in his position
would have a reasonable belief that his supervisors engaged in an abuse of
authority. 11
11
The appellant also alleged that his second-level supervisor directed an inmate orderly
to make copies of time and attendance documents. IAF, Tab 4 at 13, 21. He appears to
allege that this was a violation of a law, rule, or regulation. Ordinarily, to make a
protected disclosure of a violation of a law, rule, or regulation, an employee must
identify the specific law, rule, or regulation that was violated. Langer v. Department of
the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). However, the employee need not
identify a statutory or regulatory provision by title or number when the employee’s
statements and the circumstances of those statements clearly implicate an identifiable
law, rule, or regulation. Id.; Mogyorossy v. Department of the Air Force, 96 M.S.P.R.
652, 660 (2004). Here, the appellant has failed to identify any specific law, rule, or
regulation that prohibits requesting an inmate orderly to copy time and attendance
documents, nor is there one that is readily identifiable by surrounding circumstances.
Indeed, the appellant provided no evidence regarding the role of inmate orderlies, and
provided no basis to conclude they would be precluded from making copies of office
records. The fact that the records at issue contained allegedly “sensitive” information
does not in itself provide a basis for finding it prohibited absent some evidence to
support such a conclusion. Accordingly, we find the appellant has provided insufficient
evidence to satisfy his burden of proof that a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by him could reasonably conclude
20
Conclusion
¶37 Based on the foregoing, we find the appellant has failed to establish that he
made a protected disclosure. For that reason, we affirm the initial decision as
modified and deny the appellant’s request for corrective action. Except as
modified by this Final Order, the initial decision of the administrative judge is the
Board’s final decision.
NOTICE OF APPEAL RIGHTS 12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
that the actions disclosed were a violation of law, rule, or regulation. Lachance,
174 F.3d at 1381.
12
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
21
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
22
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S.420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
23
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
13
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
24
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
25
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.